Attack the Defendant
By Elaine McArdle
A few years ago, we began to notice that plaintiffs' lawyers were losing a disturbing number of "good" cases – cases that just a few years before would have been impossible to lose.
Juries were siding with the defendant in rear-end collisions and even in cases when the defense admitted the plaintiff was blameless.
Determined to get to the bottom of this trend, veteran trial lawyers Gregory Cusimano and David Wenner were asked to investigate.
What they found may revolutionize the way cases are tried.
After presenting cases to hundreds of focus groups around the country, the two litigators discovered a simple but extremely important pattern: When they began their opening statement by talking about the plaintiff, jurors would blame the victim for what happened. But if they started with the defendant's conduct, jurors focused on what the defendant had done wrong and placed much less blame on the plaintiff.
While this phenomenon may be surprising to lawyers, it's nothing new to social scientists.
"When you put a plaintiff on first, it's a losing proposition," says James Burgund, a sociologist turned trial consultant who has a high rate of success in his 17 years of assisting lawyers.
"I would say that 90 percent of all plaintiffs' cases should start out with your attack on the defendant," he adds.
About 20 years ago, social scientists uncovered what they call "the availability bias," a phenomenon that governs how people formulate opinions and make decisions. As people attempt to understand something new, they seize upon the information presented to them first to develop a working theory of what happened and why, filling in the blanks using whatever information is "available."
One blank they instinctively try to fill in is why something happened. Although people may modify their opinion as they get new information, everything they hear later is filtered through that first impression.
Through hundreds of focus groups, Cusimano and Wenner found this phenomenon plays a critical role in how jurors view a case.
When a plaintiff's lawyer begins his or her opening statement with the plaintiff, that's whose behavior the jurors will focus on when trying to fill in the blanks as to causation – because that's the only information available.
But if the plaintiff's lawyer starts a trial by talking about the defendant, jurors will construct their understanding of the case in the context of the defendant's behavior – which, of course, is what the plaintiff's lawyer wants them to do.
"I think we've presented a new way for lawyers to begin to think about trial preparation," says Wenner, a former therapist who now does high-end personal injury cases in Phoenix.
"I think jurors develop stories about what happened, and then once the evidence is presented, they look for evidence that supports their version of the story, rather than saying, 'Oh, that evidence didn't fit my theory, so now I have to rethink my theory,'" Wenner says.
Because plaintiffs' lawyers get to tell the story first during their opening statement, they have complete control over the jury's first impression of the case. And that first impression should be of the "evil" defendant.
"If you focus the jury's attention on the defendant's conduct and keep the focus there, you can limit the amount of attention they will pay to the plaintiff's conduct in making their decision," says Wenner.
This is especially important in an age when jurors worry about "jackpot justice" and are more suspicious of plaintiffs than ever.
As simple as it may sound, this principle worked time and again with the focus groups that Wenner and Cusimano conducted – as well as in actual cases they've litigated.
"What we've discovered is why we lost and what could be done to balance the playing field," says Cusimano, partner in a six-lawyer firm in Gasden, Ala. and listed for the past seven years in Best Lawyers in America.
Of course, no single technique is a guarantee of success, Wenner stresses.
"We've spent hundreds and hundreds and hundreds of hours doing this, and we take it very, very seriously," says Wenner. "It's not a parlor trick. It's very useful information, but it's not a panacea. We're not claiming that we're hypnotizing the jury or anything like that.
"It's not manipulation; it's not trickery. And it's not a cure-all, believe me. It simply influences the decision-making process in a way that generally is helpful to the plaintiff. It's simply doing what a good plaintiffs' lawyer should do, which is to direct the jury's attention to the defendant's conduct. That's what you should be doing anyway."
The 'Availability Bias'
The "availability bias" was first identified by social scientists in the early 1980s. And a test that's well-known in the field of social science strongly supports the theory.
"You tell a story about a man named Richard Jones, a business executive, who worked downtown in a skyscraper," explains James Lees, a trial lawyer and Democratic candidate for governor in West Virginia who's worked with Cusimano and Wenner on the project.
Each day the man arrived at work at the same time, parked in the same space, left at precisely 6 p.m., got on the highway and arrived home at 6:20.
"But one day, his wife had the flu. So that day, he thought he'd go home early and fix dinner for his wife. Realizing that he had a little extra time, he got on the scenic highway. He pulls up to an intersection, and the light changes from green to yellow, but being a defensive driver, he stops. When the light turns back to green, as he starts through the intersection, a drunken teen comes flying down the road and crashes into Richard's car and kills him.
"At the funeral, as his friends are walking out of the funeral home, they couldn't help but say, 'If only ......"
Lees then stops and lets members of the focus group finish the sentence.
According to social science literature, as well as to Lees and his colleagues, who've tried the experiment numerous times, almost everyone will respond, "If only the wife hadn't gotten sick," or, "If only he hadn't taken the scenic highway."
"It works every time," says Lees. "Ninety-three percent of them will always go to the conduct of the person you talked about first. You can even do that to a group of plaintiffs' lawyers, and they'll say, 'If only he hadn't stopped at the yellow light.'
"I'll say, 'Wait a minute! What's the cause of death? The drunken teenager.' But no one goes there. They don't go there because you sequence the story in such a way as to psychologically take people to the conduct of the victim," says Lees.
Cusimano and Wenner tested this theory over and over again, using a variety of fact patterns and cases. They got the same results each time.
When they started off with the plaintiff's story, that's what jurors would talk about when they finally began deliberating. But when they switched the presentation by starting off with the defendant and what he'd done, they got the opposite result.
Relying on these findings, they developed a technique of trial presentation that they call "Sequencing," which starts off with the defendant's conduct and keeps the jurors' focus there.
Sequencing has already advanced beyond the realm of theory. These lawyers are using sequencing in their own practices.
Cusimano was litigating a case recently that involved a claim of faulty seatbelt design. The plaintiff didn't fasten her seatbelt when she first got into the car. A few minutes later, she tried to put it on as she drove, and it accidentally released the latch that holds the seat back in place. When the seat fell backwards, she lost control of the car, crashed and died. The plaintiffs claimed that a faulty seatbelt design caused the belt to wrap around the latch when she released the belt the last time she got out of the car. So there were two factors in the accident – the faulty design, and the fact that the woman failed to fasten her seatbelt until she was already driving the car.
"When we presented that case starting with what she had done and where she was that day, and the fact that her grandson was with her, and so on, the focus group clearly blamed the lady for not engaging her seatbelt before she started," Cusimano recalls. The mock jurors ignored most of the evidence presented about faulty design and instead kept their discussions on the fact that if she'd fastened her seatbelt before she drove off, she would not have been injured by the seat falling back.
But things were very different when they "sequenced" by starting with the defendant's conduct.
"Then we presented the same case to another focus group, starting back with the automotive manufacturer and the design of this system. We talked about how the problem had been reported before this accident to the manufacturer as well as to the [government]. We talked about how the manufacturer got their second and third notice [from other drivers] about the problem, and yet they continued to make these cars without changing the design. We presented the facts in the context of various choices the manufacturer had made about the design of this car."
It was only after all this evidence was presented that Cusimano talked to the focus group about the plaintiff and what happened to her that day.
The difference was striking.
"This time, the focus group spent their time talking about the auto company and what it had done wrong. They talked about the car design and why the manufacturer should have changed it. They also talked about whether there should have been a recall," Cusimano says.
Almost no discussion was directed to what the plaintiff did or didn't do.
"We resolved the case before trial, but these results significantly affected the way we expected to present the case," he says.
This works time and again, Cusimano says.
In a faulty brakes case, for instance, many lawyers might start with the injured driver – call him Mr. Jones. They might talk about what a great outdoorsman he was, what a wonderful marriage he had, what a close relationship he had with his young kids. Then they would talk about how he drove off for work that morning, and how his brakes failed at an intersection. And now look at him, they'd say, a quadriplegic confined to a motorized wheelchair.
"At that point, the jury will be thinking about what Mr. Jones did or didn't do. It's just a principle of human psychology. They'll be saying, 'Why didn't he notice that there was something different about the brakes? Didn't he know they didn't feel right?'"
Instead, Cusimano says you should start this case in Detroit at the car manufacturer headquarters, at the time engineers are first discussing what type of brake system to use. You take jurors through the various choices they made, such as their decision to use a less-safe system because it was cheaper. You take them through the tests that showed the brake system tended to fail, and you show them the internal memos regarding safety concerns. You tell them about other people having problems with their brakes, and the car maker's decision to ignore the problem and refuse a recall.
It's only at that point that you introduce the plaintiff and talk about what happened the day of the accident.
"By the time you tell them about Mr. Jones going to the intersection, in their minds, they've jumped ahead. They know the brakes are going to fail, and they're focusing on the defendant's conduct," Cusimano says.
Blaming the Victim
Of course, this technique runs counter to what many lawyers do at trial.
It seems only natural to begin an opening statement by painting a sympathetic portrait of the plaintiff, so that the jury has someone to connect with. Lawyers especially prefer to do this when the plaintiff has been seriously injured, because they hope to immediately engender sympathy.
But Cusimano and Wenner found that starting off with the plaintiff doesn't engender sympathy at all – especially in today's climate, when jurors are far more likely to be suspicious of plaintiffs and their motives for filing a lawsuit.
"We've found in focus groups that even when the plaintiff is legally blame-free and the defendants don't make a claim for contributory negligence, jurors still often want to find fault with the plaintiff," Wenner says.
"Let's say you have a birth-trauma case where the claim is failure to timely deliver or failure to timely diagnose fetal distress, cases where the doctor clearly did something wrong." Despite what seems to be clear-cut liability, he says, "We've seen the jurors often focus on the mother's conduct and what she did or didn't do in bringing this about, even when the defense agrees there's no responsibility."
Jurors talk about things that seem absurd, he says, such as whether the mother should have realized something was wrong during labor and demanded different treatment, whether she'd taken care of herself during her pregnancy – even when this wasn't medically relevant to the injuries – and even whether it was her fault for selecting that hospital.
"It's fascinating from a purely scientific standpoint, but from a lawyer's standpoint, it's exasperating," Wenner adds.
Anger is More Powerful
The availability bias isn't the only reason sympathy doesn't work.
Another well-recognized psychology principle is called "defensive attribution," which states that when people are faced with a scary situation that potentially could happen to them, they subconsciously construct reasons why it's the victim's fault. That way, they can tell themselves they'd never be in the same situation because they wouldn't behave the way the victim did.
Sequencing helps mitigate this psychological tendency, too; when jurors are focused on the defendant's conduct right from the start, they get around to the victim's conduct only later, after they've already blamed the defendant.
And sympathy is a poor motivator, social scientists have found.
Sympathy is an emotional state – and an uncomfortable one at that, because it makes people feel both powerless and vulnerable. It produces two responses. Because it makes them feel vulnerable, they want to find a reason why it would never happen to them – often by finding something that the victim did wrong that brought on their state: "If I were pregnant I would have been more assertive with the doctor," or, "If I had gotten in that car, I would have noticed something wrong with the brakes."
But when you put the defendant on first and cast him as a villain, it produces anger, a "cognitive" state which "mobilizes people's intellectual resources," according to Burgund. It makes them want to take action. Where sympathy makes people feel helpless, anger makes them feel empowered – and as a result, it is a more lasting state than sympathy.
For example, when a person sees a panhandler on the street, they may feel sympathetic – but only momentarily. Very quickly, they develop reasons not to feel bad: The person is lazy, doesn't want to work, etc. They quickly forget about the pathetic person they just saw. By contrast, when a person sees something that makes them angry – a mother striking her child, for instance – the person wants to do something. Maybe they intervene and maybe they don't, but either way, it is an image that haunts them for the rest of the day.
"Sympathy is the lowest motivator conceivable, and it just doesn't work," says Burgund. "And I think the results are beginning to show for these plaintiffs' lawyers, who are losing cases left and right."
Burgund was able to prove his point about sympathy during a recent trial in Oklahoma.
The plaintiff was a 14-year-old boy who went to see a doctor repeatedly, complaining of severe headaches. The doctor time after time diagnosed the pain as sinus-related, and sent the boy for sinus treatment. It turned out the boy had a massive brain tumor that could have been diagnosed and treated if the doctor had ordered an x-ray or MRI. By the time the tumor was discovered, there was nothing doctors could do.
The plaintiff's lawyer had prepared a day-in-the-life film, showing the boy's daily life. It was extremely graphic and difficult to watch, as the boy had lost most of his mental and physical faculties. The film showed the boy drooling, and having his skull drained with a needle.
The plaintiff's lawyer was very proud of the film, and planned to start off the trial by showing it to jurors.
Burgund strongly advised against it. Jurors often react to severely injured people by attempting to distance themselves from the person, he explained, especially when faced with something difficult to witness. They might attempt to figure out why they wouldn't be in the same situation for example, by blaming the boy or his parents for not seeking a second medical opinion. Jurors also tend to resent the person forcing them to witness such unpleasantness, he said – in this case, the plaintiff's lawyer.
But the lawyer refused Burgund's advice. He, like many other lawyers, resisted changing the way he'd always done things – even when it didn't work, Burgund says.
"He expected it would be a monumental tearjerker," Burgund recalls, and he chose to present it at the start of the case.
"But when he looked up at the jury, they were all just sitting there. There was an atmosphere of total indifference. The lawyer didn't know what to do. The jury didn't seem to be moved at all."
Fortunately for the plaintiff's lawyer, the defense successfully moved for a mistrial, claiming the film was overly prejudicial. To Burgund, this shows that defense lawyers, too, don't understand what does and doesn't work at trial.
At the retrial, the lawyer listened to Burgund, who advised that he direct juror attention to the defendant. This time, the plaintiff's case started off with the defendant doctor, who was called as a hostile witness and cross-examined. Next, the plaintiff's expert testified about what the doctor had done wrong. Then the boy's parents were called, and a friend of the boy's. Finally, the boy himself appeared in his wheelchair – but only briefly.
"We didn't use the day-in-the-life, and we brought him in just for the jury to see him, and he left. It was like he made a cameo appearance," says Burgund.
At that point, everyone in the courtroom was crying, including the judge, Burgund recalls. And the jury returned with a verdict of $6 million.
Burgund successfully used anger as a motivator in another case, this time in East Texas.
The case was tough from the plaintiff's perspective, as there was a strong element of contributory negligence. The plaintiff had lost his arm while trying to do maintenance on a hay baler while the motor was running, despite prominent warnings on the machine that this was very dangerous.
"The plaintiff's lawyers wanted to put the plaintiff on first, but I talked them out of it. We put the corporate representative on first," says Burgund. From the start, the plaintiff's lawyers concentrated on what the defendant could have done differently: better design, better warnings. They also emphasized that there had been numerous other accidents of this type.
Only after an avalanche of evidence about the defendant did they introduce the plaintiff and explain what happened to him. By that time, the jury was so incensed at the manufacturer's apparent indifference to safety that they almost didn't need to hear about the plaintiff, Burgund says.
The highest award the plaintiffs' team knew of in hay-baler cases prior to this one was $1.5 million. Yet Burgund and his team landed a $10.2 million verdict.
"Afterwards, all the jurors talked about was their anger at the company," recalls Burgund. "They weren't even talking about our client. It was as if he didn't exist."
By focusing on the defendant's conduct first, "Your client becomes a symbol of corporate shortcuts, as opposed to the centerpiece of the trial," he says.
Personal Responsibility
Cusimano and Wenner found two other anti-plaintiff biases that lawyers can minimize with proper sequencing. They are the "personal responsibility" bias, in which jurors want the plaintiff to accept responsibility for what's occurred in his life, and one they've dubbed the "stuff happens" bias.
Plaintiffs' lawyers must be aware of these biases if they want to win their cases, the two litigators say.
"This 'stuff happens' bias is a very, very strong anti-plaintiff bias," notes Cusimano. "What it means is that a certain percentage of people will rule for the defendant anyway, and their explanation is, 'You know, it's a tragedy that this happened to the plaintiff, but it's just part of life, we all have to play with the cards we're dealt.' Or they'll say, 'Society just can't afford to compensate everyone who gets hurt. Stuff happens.'"
In light of the "stuff happens" bias, it's even more important to emphasize the defendant's conduct – in other words, to show that "stuff happened" because the defendant made it happen. This is even true in cases where it's clear the plaintiff did absolutely nothing wrong.
And the personal responsibility bias, according to Cusimano, "is the strongest one in the country. It's a sense that prevails in this country now, both politically and in the courtroom, that individuals don't want to take responsibility for their own actions and want to blame someone else for what happens to them.
"So you have to overcome that by showing the strength and character of the plaintiff, by showing they did take responsibility for any and all things they could take responsibility for," he says.
Agrees Lees, "Personal responsibility is something the jury is going to get to eventually, but you want them to go there after contrasting the bad behavior of the defendant with the good behavior of your client.
"When you do that, we've found you'll be far more successful."
Overcoming Juror Bias
Using the theories of Cusimano and Wenner won't produce miracles, they insist. A trial must be well-handled in all aspects before sequencing can be helpful.
But for plaintiffs' lawyers looking for useful techniques, sequencing is an important place to start, they say.
A few years ago, we began to notice that plaintiffs' lawyers were losing a disturbing number of "good" cases – cases that just a few years before would have been impossible to lose.
Juries were siding with the defendant in rear-end collisions and even in cases when the defense admitted the plaintiff was blameless.
Determined to get to the bottom of this trend, veteran trial lawyers Gregory Cusimano and David Wenner were asked to investigate.
What they found may revolutionize the way cases are tried.
After presenting cases to hundreds of focus groups around the country, the two litigators discovered a simple but extremely important pattern: When they began their opening statement by talking about the plaintiff, jurors would blame the victim for what happened. But if they started with the defendant's conduct, jurors focused on what the defendant had done wrong and placed much less blame on the plaintiff.
While this phenomenon may be surprising to lawyers, it's nothing new to social scientists.
"When you put a plaintiff on first, it's a losing proposition," says James Burgund, a sociologist turned trial consultant who has a high rate of success in his 17 years of assisting lawyers.
"I would say that 90 percent of all plaintiffs' cases should start out with your attack on the defendant," he adds.
About 20 years ago, social scientists uncovered what they call "the availability bias," a phenomenon that governs how people formulate opinions and make decisions. As people attempt to understand something new, they seize upon the information presented to them first to develop a working theory of what happened and why, filling in the blanks using whatever information is "available."
One blank they instinctively try to fill in is why something happened. Although people may modify their opinion as they get new information, everything they hear later is filtered through that first impression.
Through hundreds of focus groups, Cusimano and Wenner found this phenomenon plays a critical role in how jurors view a case.
When a plaintiff's lawyer begins his or her opening statement with the plaintiff, that's whose behavior the jurors will focus on when trying to fill in the blanks as to causation – because that's the only information available.
But if the plaintiff's lawyer starts a trial by talking about the defendant, jurors will construct their understanding of the case in the context of the defendant's behavior – which, of course, is what the plaintiff's lawyer wants them to do.
"I think we've presented a new way for lawyers to begin to think about trial preparation," says Wenner, a former therapist who now does high-end personal injury cases in Phoenix.
"I think jurors develop stories about what happened, and then once the evidence is presented, they look for evidence that supports their version of the story, rather than saying, 'Oh, that evidence didn't fit my theory, so now I have to rethink my theory,'" Wenner says.
Because plaintiffs' lawyers get to tell the story first during their opening statement, they have complete control over the jury's first impression of the case. And that first impression should be of the "evil" defendant.
"If you focus the jury's attention on the defendant's conduct and keep the focus there, you can limit the amount of attention they will pay to the plaintiff's conduct in making their decision," says Wenner.
This is especially important in an age when jurors worry about "jackpot justice" and are more suspicious of plaintiffs than ever.
As simple as it may sound, this principle worked time and again with the focus groups that Wenner and Cusimano conducted – as well as in actual cases they've litigated.
"What we've discovered is why we lost and what could be done to balance the playing field," says Cusimano, partner in a six-lawyer firm in Gasden, Ala. and listed for the past seven years in Best Lawyers in America.
Of course, no single technique is a guarantee of success, Wenner stresses.
"We've spent hundreds and hundreds and hundreds of hours doing this, and we take it very, very seriously," says Wenner. "It's not a parlor trick. It's very useful information, but it's not a panacea. We're not claiming that we're hypnotizing the jury or anything like that.
"It's not manipulation; it's not trickery. And it's not a cure-all, believe me. It simply influences the decision-making process in a way that generally is helpful to the plaintiff. It's simply doing what a good plaintiffs' lawyer should do, which is to direct the jury's attention to the defendant's conduct. That's what you should be doing anyway."
The 'Availability Bias'
The "availability bias" was first identified by social scientists in the early 1980s. And a test that's well-known in the field of social science strongly supports the theory.
"You tell a story about a man named Richard Jones, a business executive, who worked downtown in a skyscraper," explains James Lees, a trial lawyer and Democratic candidate for governor in West Virginia who's worked with Cusimano and Wenner on the project.
Each day the man arrived at work at the same time, parked in the same space, left at precisely 6 p.m., got on the highway and arrived home at 6:20.
"But one day, his wife had the flu. So that day, he thought he'd go home early and fix dinner for his wife. Realizing that he had a little extra time, he got on the scenic highway. He pulls up to an intersection, and the light changes from green to yellow, but being a defensive driver, he stops. When the light turns back to green, as he starts through the intersection, a drunken teen comes flying down the road and crashes into Richard's car and kills him.
"At the funeral, as his friends are walking out of the funeral home, they couldn't help but say, 'If only ......"
Lees then stops and lets members of the focus group finish the sentence.
According to social science literature, as well as to Lees and his colleagues, who've tried the experiment numerous times, almost everyone will respond, "If only the wife hadn't gotten sick," or, "If only he hadn't taken the scenic highway."
"It works every time," says Lees. "Ninety-three percent of them will always go to the conduct of the person you talked about first. You can even do that to a group of plaintiffs' lawyers, and they'll say, 'If only he hadn't stopped at the yellow light.'
"I'll say, 'Wait a minute! What's the cause of death? The drunken teenager.' But no one goes there. They don't go there because you sequence the story in such a way as to psychologically take people to the conduct of the victim," says Lees.
Cusimano and Wenner tested this theory over and over again, using a variety of fact patterns and cases. They got the same results each time.
When they started off with the plaintiff's story, that's what jurors would talk about when they finally began deliberating. But when they switched the presentation by starting off with the defendant and what he'd done, they got the opposite result.
Relying on these findings, they developed a technique of trial presentation that they call "Sequencing," which starts off with the defendant's conduct and keeps the jurors' focus there.
Sequencing has already advanced beyond the realm of theory. These lawyers are using sequencing in their own practices.
Cusimano was litigating a case recently that involved a claim of faulty seatbelt design. The plaintiff didn't fasten her seatbelt when she first got into the car. A few minutes later, she tried to put it on as she drove, and it accidentally released the latch that holds the seat back in place. When the seat fell backwards, she lost control of the car, crashed and died. The plaintiffs claimed that a faulty seatbelt design caused the belt to wrap around the latch when she released the belt the last time she got out of the car. So there were two factors in the accident – the faulty design, and the fact that the woman failed to fasten her seatbelt until she was already driving the car.
"When we presented that case starting with what she had done and where she was that day, and the fact that her grandson was with her, and so on, the focus group clearly blamed the lady for not engaging her seatbelt before she started," Cusimano recalls. The mock jurors ignored most of the evidence presented about faulty design and instead kept their discussions on the fact that if she'd fastened her seatbelt before she drove off, she would not have been injured by the seat falling back.
But things were very different when they "sequenced" by starting with the defendant's conduct.
"Then we presented the same case to another focus group, starting back with the automotive manufacturer and the design of this system. We talked about how the problem had been reported before this accident to the manufacturer as well as to the [government]. We talked about how the manufacturer got their second and third notice [from other drivers] about the problem, and yet they continued to make these cars without changing the design. We presented the facts in the context of various choices the manufacturer had made about the design of this car."
It was only after all this evidence was presented that Cusimano talked to the focus group about the plaintiff and what happened to her that day.
The difference was striking.
"This time, the focus group spent their time talking about the auto company and what it had done wrong. They talked about the car design and why the manufacturer should have changed it. They also talked about whether there should have been a recall," Cusimano says.
Almost no discussion was directed to what the plaintiff did or didn't do.
"We resolved the case before trial, but these results significantly affected the way we expected to present the case," he says.
This works time and again, Cusimano says.
In a faulty brakes case, for instance, many lawyers might start with the injured driver – call him Mr. Jones. They might talk about what a great outdoorsman he was, what a wonderful marriage he had, what a close relationship he had with his young kids. Then they would talk about how he drove off for work that morning, and how his brakes failed at an intersection. And now look at him, they'd say, a quadriplegic confined to a motorized wheelchair.
"At that point, the jury will be thinking about what Mr. Jones did or didn't do. It's just a principle of human psychology. They'll be saying, 'Why didn't he notice that there was something different about the brakes? Didn't he know they didn't feel right?'"
Instead, Cusimano says you should start this case in Detroit at the car manufacturer headquarters, at the time engineers are first discussing what type of brake system to use. You take jurors through the various choices they made, such as their decision to use a less-safe system because it was cheaper. You take them through the tests that showed the brake system tended to fail, and you show them the internal memos regarding safety concerns. You tell them about other people having problems with their brakes, and the car maker's decision to ignore the problem and refuse a recall.
It's only at that point that you introduce the plaintiff and talk about what happened the day of the accident.
"By the time you tell them about Mr. Jones going to the intersection, in their minds, they've jumped ahead. They know the brakes are going to fail, and they're focusing on the defendant's conduct," Cusimano says.
Blaming the Victim
Of course, this technique runs counter to what many lawyers do at trial.
It seems only natural to begin an opening statement by painting a sympathetic portrait of the plaintiff, so that the jury has someone to connect with. Lawyers especially prefer to do this when the plaintiff has been seriously injured, because they hope to immediately engender sympathy.
But Cusimano and Wenner found that starting off with the plaintiff doesn't engender sympathy at all – especially in today's climate, when jurors are far more likely to be suspicious of plaintiffs and their motives for filing a lawsuit.
"We've found in focus groups that even when the plaintiff is legally blame-free and the defendants don't make a claim for contributory negligence, jurors still often want to find fault with the plaintiff," Wenner says.
"Let's say you have a birth-trauma case where the claim is failure to timely deliver or failure to timely diagnose fetal distress, cases where the doctor clearly did something wrong." Despite what seems to be clear-cut liability, he says, "We've seen the jurors often focus on the mother's conduct and what she did or didn't do in bringing this about, even when the defense agrees there's no responsibility."
Jurors talk about things that seem absurd, he says, such as whether the mother should have realized something was wrong during labor and demanded different treatment, whether she'd taken care of herself during her pregnancy – even when this wasn't medically relevant to the injuries – and even whether it was her fault for selecting that hospital.
"It's fascinating from a purely scientific standpoint, but from a lawyer's standpoint, it's exasperating," Wenner adds.
Anger is More Powerful
The availability bias isn't the only reason sympathy doesn't work.
Another well-recognized psychology principle is called "defensive attribution," which states that when people are faced with a scary situation that potentially could happen to them, they subconsciously construct reasons why it's the victim's fault. That way, they can tell themselves they'd never be in the same situation because they wouldn't behave the way the victim did.
Sequencing helps mitigate this psychological tendency, too; when jurors are focused on the defendant's conduct right from the start, they get around to the victim's conduct only later, after they've already blamed the defendant.
And sympathy is a poor motivator, social scientists have found.
Sympathy is an emotional state – and an uncomfortable one at that, because it makes people feel both powerless and vulnerable. It produces two responses. Because it makes them feel vulnerable, they want to find a reason why it would never happen to them – often by finding something that the victim did wrong that brought on their state: "If I were pregnant I would have been more assertive with the doctor," or, "If I had gotten in that car, I would have noticed something wrong with the brakes."
But when you put the defendant on first and cast him as a villain, it produces anger, a "cognitive" state which "mobilizes people's intellectual resources," according to Burgund. It makes them want to take action. Where sympathy makes people feel helpless, anger makes them feel empowered – and as a result, it is a more lasting state than sympathy.
For example, when a person sees a panhandler on the street, they may feel sympathetic – but only momentarily. Very quickly, they develop reasons not to feel bad: The person is lazy, doesn't want to work, etc. They quickly forget about the pathetic person they just saw. By contrast, when a person sees something that makes them angry – a mother striking her child, for instance – the person wants to do something. Maybe they intervene and maybe they don't, but either way, it is an image that haunts them for the rest of the day.
"Sympathy is the lowest motivator conceivable, and it just doesn't work," says Burgund. "And I think the results are beginning to show for these plaintiffs' lawyers, who are losing cases left and right."
Burgund was able to prove his point about sympathy during a recent trial in Oklahoma.
The plaintiff was a 14-year-old boy who went to see a doctor repeatedly, complaining of severe headaches. The doctor time after time diagnosed the pain as sinus-related, and sent the boy for sinus treatment. It turned out the boy had a massive brain tumor that could have been diagnosed and treated if the doctor had ordered an x-ray or MRI. By the time the tumor was discovered, there was nothing doctors could do.
The plaintiff's lawyer had prepared a day-in-the-life film, showing the boy's daily life. It was extremely graphic and difficult to watch, as the boy had lost most of his mental and physical faculties. The film showed the boy drooling, and having his skull drained with a needle.
The plaintiff's lawyer was very proud of the film, and planned to start off the trial by showing it to jurors.
Burgund strongly advised against it. Jurors often react to severely injured people by attempting to distance themselves from the person, he explained, especially when faced with something difficult to witness. They might attempt to figure out why they wouldn't be in the same situation for example, by blaming the boy or his parents for not seeking a second medical opinion. Jurors also tend to resent the person forcing them to witness such unpleasantness, he said – in this case, the plaintiff's lawyer.
But the lawyer refused Burgund's advice. He, like many other lawyers, resisted changing the way he'd always done things – even when it didn't work, Burgund says.
"He expected it would be a monumental tearjerker," Burgund recalls, and he chose to present it at the start of the case.
"But when he looked up at the jury, they were all just sitting there. There was an atmosphere of total indifference. The lawyer didn't know what to do. The jury didn't seem to be moved at all."
Fortunately for the plaintiff's lawyer, the defense successfully moved for a mistrial, claiming the film was overly prejudicial. To Burgund, this shows that defense lawyers, too, don't understand what does and doesn't work at trial.
At the retrial, the lawyer listened to Burgund, who advised that he direct juror attention to the defendant. This time, the plaintiff's case started off with the defendant doctor, who was called as a hostile witness and cross-examined. Next, the plaintiff's expert testified about what the doctor had done wrong. Then the boy's parents were called, and a friend of the boy's. Finally, the boy himself appeared in his wheelchair – but only briefly.
"We didn't use the day-in-the-life, and we brought him in just for the jury to see him, and he left. It was like he made a cameo appearance," says Burgund.
At that point, everyone in the courtroom was crying, including the judge, Burgund recalls. And the jury returned with a verdict of $6 million.
Burgund successfully used anger as a motivator in another case, this time in East Texas.
The case was tough from the plaintiff's perspective, as there was a strong element of contributory negligence. The plaintiff had lost his arm while trying to do maintenance on a hay baler while the motor was running, despite prominent warnings on the machine that this was very dangerous.
"The plaintiff's lawyers wanted to put the plaintiff on first, but I talked them out of it. We put the corporate representative on first," says Burgund. From the start, the plaintiff's lawyers concentrated on what the defendant could have done differently: better design, better warnings. They also emphasized that there had been numerous other accidents of this type.
Only after an avalanche of evidence about the defendant did they introduce the plaintiff and explain what happened to him. By that time, the jury was so incensed at the manufacturer's apparent indifference to safety that they almost didn't need to hear about the plaintiff, Burgund says.
The highest award the plaintiffs' team knew of in hay-baler cases prior to this one was $1.5 million. Yet Burgund and his team landed a $10.2 million verdict.
"Afterwards, all the jurors talked about was their anger at the company," recalls Burgund. "They weren't even talking about our client. It was as if he didn't exist."
By focusing on the defendant's conduct first, "Your client becomes a symbol of corporate shortcuts, as opposed to the centerpiece of the trial," he says.
Personal Responsibility
Cusimano and Wenner found two other anti-plaintiff biases that lawyers can minimize with proper sequencing. They are the "personal responsibility" bias, in which jurors want the plaintiff to accept responsibility for what's occurred in his life, and one they've dubbed the "stuff happens" bias.
Plaintiffs' lawyers must be aware of these biases if they want to win their cases, the two litigators say.
"This 'stuff happens' bias is a very, very strong anti-plaintiff bias," notes Cusimano. "What it means is that a certain percentage of people will rule for the defendant anyway, and their explanation is, 'You know, it's a tragedy that this happened to the plaintiff, but it's just part of life, we all have to play with the cards we're dealt.' Or they'll say, 'Society just can't afford to compensate everyone who gets hurt. Stuff happens.'"
In light of the "stuff happens" bias, it's even more important to emphasize the defendant's conduct – in other words, to show that "stuff happened" because the defendant made it happen. This is even true in cases where it's clear the plaintiff did absolutely nothing wrong.
And the personal responsibility bias, according to Cusimano, "is the strongest one in the country. It's a sense that prevails in this country now, both politically and in the courtroom, that individuals don't want to take responsibility for their own actions and want to blame someone else for what happens to them.
"So you have to overcome that by showing the strength and character of the plaintiff, by showing they did take responsibility for any and all things they could take responsibility for," he says.
Agrees Lees, "Personal responsibility is something the jury is going to get to eventually, but you want them to go there after contrasting the bad behavior of the defendant with the good behavior of your client.
"When you do that, we've found you'll be far more successful."
Overcoming Juror Bias
Using the theories of Cusimano and Wenner won't produce miracles, they insist. A trial must be well-handled in all aspects before sequencing can be helpful.
But for plaintiffs' lawyers looking for useful techniques, sequencing is an important place to start, they say.